Ninth Circuit Panel to Explore Constitutionality of Law
Providing Tax Exemption for Parsonages

By a MetNews Staff
Writer

The Ninth U.S. Circuit
Court of Appeals signaled yesterday that it may declare unconstitutional the
federal law that allows clerics to receive housing from the religious
institutions that employ them without paying taxes on the value thereof.

In an unusual, but not
unprecedented, order, the court appointed USC law professor Erwin Chemerinsky
as amicus in a pending appeal dealing with the scope of the exemption.

The panel cited three
U.S. Supreme Court cases as authority for its action, the most recent of which
was United States v. Dickerson, 530 U.S. 428 (2000), in which a law
professor, known as a strong critic of the Miranda decision, was asked
by the high court to brief the issue of whether that ruling was still good law.

Rev. Richard D. Warren
and his wife are appealing a Tax Court ruling that Internal Revenue Code Sec.
107(2) permits a parson to exclude from taxable income only the fair market
rental value of his or her dwelling. The Warrens claim they have a right under the code to
deduct all of their actual housing costs, while the government argued for the
position taken by the court.

But Ninth Circuit Judge
Stephen Reinhardt and Senior Judge James Browning, in their brief order
yesterday, gave Chemerinsky, the Warrens, and the government 45 days to file
supplemental briefs on whether the court can and should rule on the
constitutionality of the exclusion and if so, whether the exclusion violates
the Establishment Clause.

The order drew a pointed
dissent from Judge Richard Tallman, who said his colleagues had no business
wading into a constitutional issue that the parties didn’t argue in the Tax
Court and didn’t want to argue in the Ninth Circuit. “It is…completely
unnecessary and improper for us to decide this issue in this case,” he wrote,
suggesting that Browning and Reinhardt had already decided to throw out the
statute.

That drew a retort from
Reinhardt.

“When judges ask for
supplemental briefing on an issue, it does not mean, as the dissent mistakenly
asserts, that they have decided to reach a particular result,” he wrote. “The
purpose of requesting briefing in this case is to obtain more information in
order to make a more informed and reasoned decision about whether to
address an issue and, if so, how the issue should be resolved.”

It would be
irresponsible, the judge said, for the court to rule that Warren is entitled to a tax
exemption, in any amount, if the exemption can only be based on a statute which
is unconstitutional.

Chemerinsky said he
anticipates that his brief will argue that the exemption does violate the First
Amendment. He told the MetNews that he was asked several months ago, by a staff
attorney for the court, whether he would accept the appointment and responded
affirmatively.

“I feel its our
obligation as lawyers to accept” court appointments, he said.

Chemerinsky said he saw
no problem with the procedure of appointing an amicus. The issue is important,
he said, and probably could not be addressed in any other way given the
positions taken by the parties and the barriers to standing that probably
preclude a citizen or taxpayer opposed to the exemption from challenging it in
court.